lesser offense instruction in Texas

2022App. 1985). “[T]he harm from denying a lesser offense instruction stems from the potential to place the jury in the dilemma of convicting 7 for a greater offense in which the jury has reasonable doubt or releasing entirely from criminal liability a person the jury is convinced is a wrongdoer.” Masterson v. State, 155 S.W.3d 167, 171 (Tex. Crim.

2022The harm from denying a lesser-offense instruction stems from the potential to “place the jury in the dilemma of convicting for a greater offense in which the jury has reasonable doubt or releasing entirely from criminal liability a person the jury is convinced is a wrongdoer.” Masterson, 155 S.W.3d at 171 .

2025Appellate courts “use a two-step analysis to determine if a defendant is entitled to a lesser-offense instruction.” Ritcherson v. State, 568 S.W.3d 667, 670 (Tex. Crim.

2022Appellate courts “use a two-step analysis to determine if a defendant is entitled to a lesser-offense instruction.” Ritcherson v. State, 568 S.W.3d 667, 670 (Tex. Crim.

2024If the jury is charged on alternate theories, the second prong of the lesser-offense test is met “only if there is evidence which, if believed, refutes or negates every theory which elevates the offense from the lesser to the greater.” Id. (quoting Arevalo v. State, 970 S.W.2d 547, 548 (Tex. Crim.

2022“If the jury is charged on alternate theories, the second prong of the lesser-offense test is met ‘only if there is evidence which, if believed, refutes or negates every theory which elevates the offense 6 from the lesser to the greater.’” Id. (quoting Arevalo v. State, 970 S.W.2d 547, 549 (Tex. Crim.

2019App. 2005); see Almanza, 686 S.W.2d at 171 . “[T]he harm from denying a lesser offense instruction stems from the potential to place the jury in the dilemma of convicting for a greater offense in which the jury has reasonable doubt or releasing entirely from criminal liability a person the jury is convinced is a wrongdoer.” Masterson v. State, 155 S.W.3d 167, 171 (Tex. Crim.

2019App. 2005); see Almanza, 686 S.W.2d at 171 . “[T]he harm from denying a lesser offense instruction stems from the potential to place the jury in the dilemma of convicting for a greater offense in which the jury has reasonable doubt or releasing entirely from criminal liability a person the jury is convinced is a wrongdoer.” Masterson v. State, 155 S.W.3d 167, 171 (Tex. Crim.

2012See Hall v. State, 225 S.W.3d 524, 535 (Tex.Crim.App.2007) (applying “cognate-pleadings approach” as sole test in first step in determining whether a party is entitled to a lesser-offense instruction).

2010See id. at 537-38 (because an off-the-record conference occurred, we did not know whether the defense requested the lesser offense instruction). .

2008See Hall v. State, 225 S.W.3d 524, 535 (Tex.Crim.App.2007) (applying “pleadings approach” as sole test for determining the first step in determining whether a party is entitled to a lesser-offense instruction); Hayward v. State, 158 S.W.3d 476, 478 (Tex.Crim.App.2005); Rousseau, 855 S.W.2d at 673 ; Gowans, 995 S.W.2d at 792 .

2001App. 1986); Shaw v. State, 874 S.W.2d 115, 118 (Tex. App.—Austin 1994, pet. ref’d); O’Hara v. State, 837 S.W.2d 139, 143 (Tex. App.—Austin 1992, pet. ref’d). 3 Whether a lesser offense instruction must be given is determined by a two-part test: “first, the lesser included offense must be included within the proof necessary to establish the offense charged, and, second, some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense.” Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim.

2001App. 1993); accord Cardenas, 30 S.W.3d at 392 ; Wolfe v. State, 917 S.W.2d 270, 278 (Tex. Crim.

2001App. 1993); accord Cardenas , 30 S.W.3d at 392 ; Wolfe v. State , 917 S.W.2d 270, 278 (Tex. Crim.

2009App. 2007) (applying A pleadings approach @ as sole test in first step of determining whether a party is entitled to a lesser-offense instruction); Hayward v. State , 158 S.W.3d 476, 478 (Tex. Crim.

2008See Hall v. State, 225 S.W.3d 524, 535 (Tex.Crim.App.2007) (applying “pleadings approach” as sole test for determining the first step in determining whether a party is entitled to a lesser-offense instruction); Hayward v. State, 158 S.W.3d 476, 478 (Tex.Crim.App.2005); Rousseau, 855 S.W.2d at 673 ; Gowans, 995 S.W.2d at 792 .

2021If the jury is charged based on alternate theories, “the second prong of the lesser-offense test is met ‘only if there is evidence which, if believed, refutes or negates every theory which elevates the offense from the lesser to the greater.’” Id. (citing Arevalo v. State, 970 S.W.2d 547, 548 (Tex. Crim.

2021If the jury is charged based on alternate theories, “the second prong of the lesser-offense test is met ‘only if there is evidence which, if believed, refutes or negates every theory which elevates the offense from the lesser to the greater.’” Id. (citing Arevalo v. State, 970 S.W.2d 547, 548 (Tex. Crim.

2011See Kham v. State , 689 S.W.2d 324, 326 (Tex. App.--Fort Worth 1985, pet. ref'd) (citing Ohio v. Johnson , 467 U.S. 493, 501 (1984)).

2011See Kham v. State, 689 S.W.2d 324, 326 (Tex. App.—Fort Worth 1985, pet. ref’d) (citing Ohio v. Johnson, 467 U.S. 493, 501 (1984)).

2011See Kham v. State , 689 S.W.2d 324, 326 (Tex. App.--Fort Worth 1985, pet. ref'd) (citing Ohio v. Johnson , 467 U.S. 493, 501 (1984)).

2011See Kham v. State, 689 S.W.2d 324, 326 (Tex. App.—Fort Worth 1985, pet. ref’d) (citing Ohio v. Johnson, 467 U.S. 493, 501 (1984)).

2008See Delgado v. State, 235 S.W.3d 244, 249-50 (Tex. Crim.

2008See Delgado v. State, 235 S.W.3d 244, 249-50 (Tex. Crim.

2001App. 1993); accord Cardenas, 30 S.W.3d at 392 ; Wolfe v. State, 917 S.W.2d 270, 278 (Tex. Crim.

2001App. 1993); accord Cardenas , 30 S.W.3d at 392 ; Wolfe v. State , 917 S.W.2d 270, 278 (Tex. Crim.

2018We reversed, explaining that a fair reading of the chemist's testimony showed that delivery of between 5 and 50 pounds of marijuana was not a rational alternative to the charged offense and that the court of appeals's conclusion that he was entitled to the lesser-offense instruction "require[d] plucking a single statement from the chemist's cross-examination testimony ... and examining it in a vacuum." Id. at 279-80 .

1998Ramos v. State, 865 S.W.2d 463, 465 (Tex.Crim.App.1993) (holding that the evidence supposedly entitling the party to the lesser offense instruction must be “viewed in light of appellant’s factual theories] of the case”).

2020App. 2005) (explaining that “the harm from denying a lesser offense instruction stems from the potential to place the jury in the dilemma of convicting for a greater offense in which the jury has reasonable doubt or releasing entirely from criminal liability a person the jury is convinced is a wrongdoer”); Ramirez, 263 S.W.3d at 43 (finding “some harm” where “the absence of the lesser included offense instruction left the jury with the sole option either to convict the defendant of the charged offense or to acquit him”).

2020Cf. Bullock, 509 S.W.3d at 929-30 (determining that trial court erred by failing to include instruction on lesser included offense of attempted theft where jury could have determined that defendant was not guilty of theft of truck but was guilty of attempted theft by believing evidence that defendant was inside truck without consent with intent to steal it and by believing defendant’s 3 On appeal, the State also points out that aggravated assault can be established by evidence that an individual committed assault causing serious bodily injury or used or exhibited a deadly weapon during the com

2019Ritcherson, 568 S.W.3d at 671 (citing Roy v. State, 509 S.W.3d 315, 317 (Tex. Crim.

2017A. Standard of Review “In analyzing a jury-charge issue, our first duty is to decide if error exists.” Rodriguez v. State, 456 S.W.3d 271, 280 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d.) (citing Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim.

2016See Schmidt, 278 S.W.3d at 362 .

2015(Tex.Crim.App 1983 ) the evidence must be directly germane to his guilt ,in shortbefore 4 a charge is warranted the two prong must be satisfied ^Aid.-r.lOO-iThereLmust- FOOTNOTE 3, Hub the defendant .denieds comiissicn.offany., offense and.,therefore presents no evidence eslabishing ccnrmssion of a lesser lnclueed offense IneJ is no|tj entitled a charge on the lesser offense Bignall-v.State 887 S-W. 2d at 21,24 ( Tex.Crim-App 1994 ) -4,Magalde was not entitled to a lesser offense instruction ;nore was the state simple because the jury may choose to disbelieve his story ,does not of itself crea

2015(Tex.Crim.App 1983 ) the evidence must be directly germane to his guilt ,in shortbefore 4 a charge is warranted the two prong must be satisfied ^Aid.-r.lOO-iThereLmust- FOOTNOTE 3, Hub the defendant .denieds comiissicn.offany., offense and.,therefore presents no evidence eslabishing ccnrmssion of a lesser lnclueed offense IneJ is no|tj entitled a charge on the lesser offense Bignall-v.State 887 S-W. 2d at 21,24 ( Tex.Crim-App 1994 ) -4,Magalde was not entitled to a lesser offense instruction ;nore was the state simple because the jury may choose to disbelieve his story ,does not of itself crea

2015Abnor, 871 S.W.2d at 732 (quoting Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App. 1986) (emphasis in original). [T]he harm from denying a lesser offense instruction stems from the potential to place the jury in the dilemma of convicting for a greater offense in which the jury has reasonable doubt or releasing entirely from criminal liability a person the jury is convinced is a wrongdoer.

2015(See Shanklin's MEMORANDUM OF LAW - MOL hereafter MOL p.4-6) Shanklin relied on BIAGAS V STATE,l77'SW 3d 161-170-71 (Tex.App.- Houston [1St Dist] 2005), and MoRE v JoHNsoN, 194 F3d 586,604 (Sth Cir.1999), further Shanklin's counsel stated in his affi- davit that his failure was not the result of any reasoned trial strategy.